Kennedy’s ENDA: A Seventeen-Year Gay-Rights Fight

On Monday, the Employment Non-Discrimination Act (ENDA), a bill which would prohibit discrimination in employment based upon sexual orientation or gender identity, successfully passed its last procedural hurdle on route to final consideration in the Senate. Its passage, later this week, is now all but certain. Seven Republicans have joined fifty-four Democrats in supporting the bill. But, hours before the Senate vote, House Speaker John Boehner signalled that Republicans in the House would block it.

Even so, the Senate made a bit of history. It has never before passed major civil-rights legislation protecting gay and transgendered Americans. The closest it has come was adding them to existing hate-crimes laws, in 2009, and, in 2010, voting to repeal the Don’t Ask Don’t Tell policy that excluded gays and lesbians from serving in the military. (That repeal did not include any affirmative non-discrimination protection.)

Seventeen years ago, on September 10, 1996, ENDA’s chief sponsor at the time, the late Senator Edward Kennedy, of Massachusetts, managed to bring the bill to the floor, where it missed passing by one vote. I was a White House aide assigned to assist with the bill on behalf of President Clinton, and I watched as it was defeated forty-nine to fifty. At the time, everyone was surprised that it got as much support as it did, a result credited to Kennedy’s legislative maneuvering.

The movement for gay and lesbian equality, in United States at least, continues to move forward at an astonishing pace. A few weeks ago, after the New Jersey Supreme Court refused to block a lower-court order in favor of marriage equality, Governor Chris Christie withdrew his appeal of it. The first weddings there were held on October 21st. With New Jersey, fully a third of the United States population now lives in states with legal same-sex marriage. And the civil-rights campaign looks to be in for more big wins in the month of November. The first may come in Hawaii.

A gay-marriage bill is moving quickly through the Hawaiian state legislature, and may be ready for the signature of Governor Neil Abercrombie, a supporter of the bill, as soon as this week. Twenty years ago, it was the Hawaii Supreme Court’s flirtation with the idea of enforcing same-sex marriage rights that served as the pretext for Republicans in Congress to introduce the Defense of Marriage Act, banning federal recognition of otherwise legal same-sex unions. The Supreme Court overturned DOMA this summer. Hawaii would become the fifteenth state with gay marriage.

Also this week, the Illinois state legislature should again take up that state’s marriage-equality bill, which has come tantalizingly close to succeeding before. This time, advocates working in Illinois tell me that they have the votes. Same-sex-marriage supporters are also eagerly anticipating a ruling—again, possibly by the end of November—from the New Mexico Supreme Court, in a case heard last month. Reports from the oral arguments in the case suggest a ruling in favor of same-sex marriage.

But, as important as these additional states will be, November’s most significant development may remain the one that came out of the U.S. Senate.

ENDA has a long history. A broader version of the bill, prohibiting discrimination in employment, housing, and public accommodation, was introduced as the Equality Act, in 1974, five years after the Stonewall riots, by then Representatives Ed Koch and Bella Abzug. In the early nineties, it was narrowed to focus only on employment discrimination; it was thought that this would make it easier to pass. Polling shows that many Americans believe such discrimination is already prohibited—but while some states and municipalities do have their own laws (New York State and New York City among them) there are no federal laws on the matter.

A version of the bill covering only sexual-orientation-based employment discrimination passed the House of Representatives, in 2007. But the exclusion of gender-identity—protection for transgendered persons—caused such a rift in the L.G.B.T.-rights movement that it doomed any chance of passage in the Senate that year, and its re-inclusion in all later versions of the bill became what some considered its major stumbling-block. (It is an unusual twist that subsequent court decisions have held that gender-identity discrimination is already outlawed under existing law.) For the bill to become law, there will have to be a shift in the House. But the inclusive terms on which that will happen are now clear. A full ENDA is in sight.

Seventeen years ago, as ENDA was being considered, on the afternoon of September 10, 1996, I was on the floor of the Senate, at Senator Kennedy’s request. Earlier that day, the Senate had passed the Defense of Marriage Act with overwhelming support. Kennedy was one of only fourteen senators to oppose it; and he believed that other senators looking for “cover” on their vote in favor of DOMA might be more inclined to support ENDA.

Before the debate got started, Kennedy’s staff asked me to check if Vice-President Al Gore was available to be in the Senate chamber that afternoon to cast a potential tie-breaking vote. Gore was in Pennsylvania on a campaign swing; he was ready to come back, but it would have been a major logistical undertaking. Once Gore heard that the vote was going to be close, he asked to be connected directly with wavering Democratic senators, which I set up with the help of the White House phone operators.

Listening in from an extension off the Senate chamber, I could hear Gore tell senator after senator that this was the right thing to do and no matter what their views, the President needed their vote. But, by the end of the debate, Kennedy had only secured forty-nine votes. The possible fiftieth vote—that of Senator David Pryor of Arkansas—was not available, because Pryor was in Arkansas due to a family medical emergency. He was the only member of the U.S. Senate not to vote, after the roll call had been extended and held open for an unusually long period.

Losing by only one vote was excruciating. We had lost an opportunity to make history. But, standing in the corridor just off the Senate Chamber after the vote, Kennedy looked at peace. Turning to his disappointed aides, smiling faintly, he said, “There will be another day.”

Richard Socarides is an attorney, political strategist, writer, and longtime gay-rights advocate. He served as a White House Special Assistant and Senior Adviser during the Clinton Administration. Follow him on Twitter @Socarides.

Richard Socarides is an attorney and longtime gay-rights advocate. He served in the White House during the Clinton Administration and has also been a political strategist. He now oversees public affairs at GLG. Opinions expressed here are only his own.